Duval Sulphur & Potash Co.

National Labor Relations Board - Board Decisions

Sep 12, 1956

116 N.L.R.B. 1073 (N.L.R.B. 1956)

DUVAL SULPHUR & POTASH CO. 1073
Duval Sulphur & Potash Co. and United Stone and Allied Prod-
ucts Workers of America, AFL-CIO, Petitioner
Duval Sulphur & Potash Co. and International Union of Mine,
Mill & Smelter Workers Local Union 415, Petitioner. Cases
Nos. 33-RC-519, 33-RC-555, 33-RC-57 , 33-RC-573, and 33-RC-
567.1 September 12,1956
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before Bryon E. Guse and L. L.
Porterfield, hearing officers. The hearing officers' rulings made at the
hearings are free from prejudicial error and are hereby affirmed 2
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.'
4. The petition in Case No. 33-RC-549, filed on February 28, 1956,
by United Stone and Allied Products Workers of America, AFL-CIO,
hereinafter called United, seeks an election in a unit limited to the
Employer's maintenance employees. The petition in Case No. 33-
RC-555, also filed by United,4 seeks an election in a unit composed of the
All of the above specified cases are 'consolidated for decisional purposes.
a Intervenor in all of these cases, International Union of Operating+Engineers Local 855,
AFL-CIO, hereinafter called Operating Engineers , moved to dismiss the petition in Case
No 33-RC-555 on the ground that the Petitioner's showing of interest allegedly was
tainted with fraud Operating Engineers , however , has submitted no evidence to warrant
such a conclusion . All parties were advised at the hearing that evidence of fraud in
procurement of cards could be adduced before the Regional Director . The Intervenor's
motion to dismiss the petition is denied . We are administratively satisfied that the'
Petitioner 's showing of interest was sufficient . Royal Jet , Incorporated, 113 NLRB 1064.
a In Cases Nos . 33-RC-572 and 573 , Operating Engineers contends that its separate
contracts covering the production and maintenance employees were automatically renewed
beyond their original termination dates and that therefore these contracts constitute a
bar to a present determinaion of representatives In support of this contention , it argues
that Paul Teague , an international, representative of the Operating Engineers, had no
authority to give notice to terminate the contracts and that Operating Engineers, Local
855, is not bound by his conduct in so doing we find no merit in this contention. The
record „shows that international representatives negotiated both contracts , that Teague
negotiated and signed 1 of the contracts and that Teague represented Local 855 at the
hearings in Cases Nos . 33-RC-549,'555, and 567 which are 3 of the cases involved in
this proceeding . Under these circumstances , we find that when Teague gave the notices
to terminate the contracts he had at least apparent authority to do so and that, therefore,
the contracts terminated at their original termination dates and do not constitute a bar
to this proceeding See Capital District Beer Distributors Association, 109 NLRB 176
4 This petition was originally filed on March 30, 1956, and amended on April 5, 1956.
116 NLRB No. 134.
405448-57-vol. 116-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's production and maintenance employees. In Case No. 33-
RC-567 (petition filed May 21, 1956) International Union of Mine &
Smelter Workers Local 415, hereinafter called Mine Mill, petitions for
an election in a unit limited to the Employer's production employees.
On June 27, 1956, United again filed two petitions seeking (in Case
No. 33-RC-572) an election in a unit limited to the maintenance em-
ployees and (in Case No. 33-RC-573) an election in a combined pro-
duction and maintenance unit.' Three separate hearings were held in
the above cases.
The Employer contends that only a combined unit of its production
and maintenance employees is appropriate for the purposes of collec-
tive bargaining. United substantially agrees with this position but is
willing to appear on the ballot for any unit the Board may find ap-
propriate. At the hearings, Mine Mill took no position as to the ap-
propriateness of the unit or units and is also willing to appear on any
ballot. Operating Engineers contends that the production employees
and the maintenance employees should be represented in separate ap-
propriate units unless the employees in each group, by a self-deter-
mination election, vote to be represented in a combined unit.
In 1952, Mine Mill was certified as the collective-bargaining rep-
resentative of a unit limited to the maintenance employees and
bargained separately for such employees until 1955. In 1954, the
Operating Engineers was certified as representative of the production
employees and executed a contract covering such employees, effective
June 1, 1954, to May 31, 1956. Thereafter, in 1954, Operating Engi-
neers filed a petition seeking to merge the maintenance employees into
the unit of production employees which it then represented. The
Board, in February 1955, finding that the maintenance employees
could be represented separately or as part of a production and mainte-
nance unit, directed a self-determination election among the mainte-
nance employees. A majority of the maintenance employees voted for
Operating Engineers and therefore indicated their desire to be repre-
sented as part of the larger unit. Accordingly, on June 21, 1955, the
Board "certified that [Operating Engineers] may bargain for the em-
ployees . . . as part of the group of employees it currently repre-
sents." Thereafter, Operating Engineers sought to negotiate a new
contract covering both groups. The Employer, however, refused to
negotiate such an agreements and a contract covering only the mainte-
nance employees was executed. This contract was made effective De-
cember 15, 1955, and expired on May 31, 1956, the same expiration date
5 United's apparent reason for filing the later petitions was to avoid any possible argu-
ment that its original petitions were untimely because filed within 1 year of a Board
certification concerning certain of the employees herein involved.
O The Employer took the position that the execution of a new agreement would con-
stitute a "premature extension" of the existing contract.
DUVAL SULPHUR & POTASH CO. 107-5
of the contract covering the production employees. The record shows
that the 'parties entered into this short-term agreement for the pur-
pose of "lining up" the two agreements in anticipation of negotiating
an agreement covering both the production and the maintenance em-
ployees at the expiration of the production employees' contract?
As the Board has held in prior cases involving the employees of this
Employer,' a combined unit of the production and maintenance em-
ployees is appropriate for the purposes of collective bargaining. In
those cases, however, the Board directed self-determination elections
in each group only because of the absence of a history of collective bar-
gaining or because of a history of separate bargaining for each group.
As stated above, the maintenance employees, in the last election con-
ducted among any employees herein concerned, voted to be represented
as part of a combined production and maintenance unit and the Board
certified that the Operating Engineers could bargain for them as part
of such larger unit. The parties then regarded the production and
maintenance unit to be appropriate and intended to bargain on that
basis. They executed a short term contract covering only the mainte-
nance employees, however, because the Employer believed that certain
technical problems would arise by the execution of a new contract cov-
ering both groups. An overall contract was to be executed at the
expiration of the two separate agreements. In view of this history,
including the fact that the maintenance employees have recently
chosen to be represented as part of the overall unit, it is clear that the
factors present in the prior cases which warranted a finding that sepa-
rate units of the production and maintenance employees would also be
appropriate are not present in the instant cases. We therefore find
that only a combined unit of the production and maintenance em-
ployees is now appropriate for collective-bargaining purposes and
shall direct an election in a unit of the following employees which we
find constitutes an appropriate unit within the meaning of Section
9 (b) of the Act:
All production and maintenance employees employed at the Em-
ployer's Carlsbad, New Mexico, operations, excluding electricians,
hoistmen, office clerical employees, professional employees, guards,
watchmen, and all supervisors as defined in the Act. -
[Text of Direction of Election omitted from publication.]
MEMBER BEAN took, no part in the consideration of the above Deci-
sion and Direction of Election.
4 The ' filing of the petitions in the instant cases prevented the negotiation and execution
of such a new agreement
8 100 NLRB 1528, 107 NLRB 1002, and Case No. 33-RC-504 (not reported in volumes
of Board Decisions and Orders).